Staffordshire Solicitors | Solicitors in Stafford and Rugeley - Hand Morgan and Owen - Employment Bulletin

HMO QUARTERLY EMPLOYMENT BULLETIN – JULY 2010

RELIGIOUS DISCRIMINATION
In the recent case of McFarlane v Relate The Court of Appeal has heldthat dismissing a Relate counsellor for refusing to counsel same-sexcouples was not discriminatory on the grounds of religion or belief.The judgment, applying a similar case of London Borough Islington vLadele (in which a Christian registrar refused to perform civilpartnerships), is authority for the proposition that there is nothingin the Employment Equality (Religion or Belief) Regulations 2003 or inthe Human that entitled Mr Mcfarlane to refuse to provide counsellingservices to all sections of the community.

ILLEGIBLE WRITING AND CLAIM FORMS
In the case of May v Greenwich Council The Employment Appeals Tribunal dealt with a case concerning a illegible claim form.

Mr May presented a claim form on the last available date of therequired three month period. In attempting to fit everything into theET1 form, which he completed by hand, his handwriting became ratherdiminutive.   The Tribunal rejected the Claim on this basis and hisClaim there fore became time barred before he could resubmit his form.

The EAT allowed Mr May’s Appeal and stated that Employment Tribunalcould not refuse to accept the claim under rule 3(2) of the EmploymentTribunal Rules (that the claim does not have the required information)because of partial illegibility where the Claim Form contains therequired details.

Interestingly the Judge stated that this particular claim form waslegible and that a document is only illegible if it is not possibleread without the need to use a magnifying glass!

EMPLOYEE MISCONDUCT AND POLICE INVOLVEMENT
In the case of Secretary of State for Justice v Mansfield TheEmployment Appeal Tribunal ruled on whether it is reasonable foremployers to suspend misconduct investigations whilst the employeeconcerned is being investigated by the police.

Mr Mansfield a prison officer was suspended on a variety of chargesincluding allegations of planting drugs in prisoner cells. He wassuspended in May 2006 pending an investigation by the prison service.At this point the police also began an investigation into the matterwhich resulted in a prosecution. However criminal charges made againstMr Mansfield were dropped by April 2007 and the prison’s internalinvestigation resumed thereafter. A disciplinary hearing took place inJanuary 2008 where after Mr Mansfield was dismissed for grossmisconduct. This decision was upheld at two subsequent internalappeals.

Overturning an Employment Tribunal decision the Employment AppealTribunal reversed this decision, holding that it is not unreasonablefor an employer to suspend its internal investigation pending a policeinvestigation into the same misconduct

MISCONDUCT INVESTIGATIONS
When considering an unfair dismissal case involving misconductemployment tribunals will look at whether the employer’s investigationwas fair and reasonable. An employer need not have conclusive proof ofan employee’s misconduct but a genuine and reasonable belief.

In the recent Court of Appeal case of Salford Royal NHS FoundationTrust v Roldan the employee, who had been recruited from Singapore in2003, claimed unfair dismissal on the basis that the employer hadfailed to conduct a proper investigation into her alleged misconduct.

In considering whether the investigation was fair and adequate, aTribunal should look at the consequences for the employee of a findingof unfair dismissal and also the surrounding circumstances

This case reached the Court of Appeal where it was clarified that themore serious the consequences of dismissal for the employee, the morecareful an investigation is required.

In the case the circumstances were that the employee had given 4 yearsservice apparently without complaint and if the dismissal had beenfound to be fair there would have been a real risk of a detriment toher career and the employee would have been at risk of deportation. Accordingly a more careful investigation was needed because theconsequences. The Court of Appeal ruled that the Tribunal had beenentitled to find that the dismissal was unfair

THE EQUALITY ACT
With 210 clauses, 28 schedules the Equality Bill received Royal Assenton 8 April and became the Equality Act 2010. It is scheduled to comeinto force in October (new government allowing)

In essence the Act is intended to harmonise and extend the various areas of discrimination law.

Key changes include ;

•   Significantly extending the law on associative discriminationacross all strands of discrimination legislation so including age,disability, sex and gender reassignment

•   Banning pay secrecy clauses that prevent employees disclosing their pay details

•   Allowing Employers to take positive steps to recruit groups whoare under-represented in their workforce where they have a choicebetween two equally suitable candidates

•   Tribunals dealing with discrimination claims will be given thepower to make recommendations for actions by the employer which affectthe whole of their workforce not just the person who brought the claim,for example the retaining of staff.

•   A new obligation for landlords and managers of residentialproperties to make reasonable adjustments for disabled tenants inrespect of common areas.

Look out for more detailed analysis later in the year.

IMPORTANCE OF RISK ASSESSMENTS
The importance of adequate risk assessments was highlighted in the recent
Health and Safety Executive (HSE) prosecution of Hanson BuildingProducts over an incident in which a worker was killed by crushinjuries to his head.

The company from Coleshill in Warwickshire were fined £280,000 for afatality at its distribution plant in April 2008 that saw a workershead crushed between blocks on a conveyor belt.

He was quality checking the blocks when another employee - who couldnot see him due to an obstructed view - changed the direction in whichthe conveyor was heading.
The HSE investigation into the incident found that the company had onlyidentified the risk of workers trapping their fingers between theblocks and the stairway. The Company was fined after admitting abreach of Section 2(1) of the Health and Safety at Work etc Act 1974.
Whilst insurers will provide cover for damages and costs from a civilclaim a fine from a criminal prosecution will rarely be covered.

12 July 2010

If you would like to read other articles, fact sheets and bulletins onEmployment Law go to http://www.hmo.co.uk/content/view/87/93/

For advice and assistance in respect of Employment matters contactNigel Pepper, Consultant or Patrick Nelson, Associate on 01785 211411.

Disclaimer
The contents of this article are for the purposes of general awarenessonly. They do not purport to constitute legal or professional advice.The law may have changed since this article was published. Readersshould not act on the basis of the information included and should takeappropriate professional advice upon their own particular circumstances.

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